A vote to hold Attorney General Merrick Garland in contempt of Congress could be on thin ice, with almost half a dozen Republican lawmakers expressing reservations about backing the move to censure him in an expected Wednesday vote.
Two sources familiar with internal conversations told The Hill that at least five GOP members have expressed opposition to or hesitation about a contempt resolution against the attorney general.
No Republicans have publicly said they plan to vote against the measure, but just two GOP defections are enough to sink a bill with the party’s razor-thin margins.
The House Rules Committee cleared the way Tuesday for the resolution to be considered on the full House floor.
House leadership had delayed a vote on the Garland resolution for nearly a month after it was passed by both the House Judiciary and Oversight committees. The measure has simmered even after Republicans vowed to conduct greater oversight of the Justice Department following the unrelated state-level prosecution of former President Trump.
House Judiciary Chair Jim Jordan (R-Ohio) was noticeably absent during a House Rules Committee meeting to consider the measure on Tuesday, but sought to project confidence even as he avoided directly answering whether the GOP had the votes.
“I think we do, but you have to check with the whip,” he told reporters Tuesday night.
The move comes after both the committees subpoenaed audio of President Biden’s interview with special counsel Robert Hur. The panels already have a transcript of the conversation.
The Justice Department has argued that releasing the audio could chill cooperation in future investigations from those not wishing to have their conversations shared with Congress.
Biden has also claimed executive privilege over the audio, which largely provides legal cover to Garland as the assertion is generally considered to foreclose any prosecution over the covered materials.
Reps. Brian Fitzpatrick (R-Pa.) and Garret Graves (R-La.) both said they were undecided on how to vote in the matter.
“I just want to read through it all. So I’ll keep an open mind and I want to read the resolutions. Let me hear on both sides and make a decision,” Fitzpatrick said.
“We’re going to read the resolution. We’re going to reach the AG’s counter argument as to why he should not be held in contempt, and figure out what the right thing to do is.”
Graves said he thought the “arrogance that [Garland has] shown is inappropriate.”
“You can’t try and delineate between a transcript and a recording. As far as I’m concerned when they gave the transcript they effectively said ‘Yes, you can have this,” he said.
But Graves said he was still unsure of his vote.
“I don’t think that Garland has done an effective job communicating why he is trying to delineate between the two. I understand he’s saying we gave it to you, but obviously there’s a reason that they’re not doing the recording and I want to better understand that.”
House Rules Committee Chair Michael Burgess (R-Texas) said during the Tuesday meeting that Garland “has refused to comply. He has left us with no choice but to pursue contempt charges to preserve the spirit of congressional oversight and to safeguard our delicate system of checks and balances.”
While Democrats say Republicans will manipulate the audio and use it in campaign commercials, Republicans argue it will provide insight to Biden’s mental acuity following Hur’s comments he had a “poor memory.”
But central to the issue is the GOP impeachment probe, which Republicans have strained to connect to the Hur investigation into classified documents. It’s clear from the transcript that matters related to the impeachment probe were not discussed, but the GOP nonetheless argues the public should also have access to the audio as a possible window into Biden’s state of mind.
Democrats have dismissed that argument.
“They do not want to read the president’s answers in the interview. They want to listen to the book on tape in a last ditch attempt to blame a cabinet member for the spectacular failure of their laughingstock impeachment drive. They’ve contrived an allegation that Garland has impeded their inquiry by preventing them from hearing, rather than reading, President Biden’s interview with the special counsel,” House Oversight ranking member Jamie Raskin (D-Md.) said during the meeting.
Raskin said the GOP is arguing that “hearing [Biden’s words] would somehow change the content of the president’s interview or the meaning of his answers and suddenly reveal the holy grail of the 118th Congress: evidence of the still unnamed and unidentified impeachable offense they’ve been spending millions of taxpayer dollars looking for.”
House Oversight Chair James Comer (R-Ky.), however, questioned the validity of Biden’s executive privilege claims.
“The President has waived any executive privilege over these audio recordings by releasing a transcript of the entire interview to the public,” Comer said, noting Biden initially did not claim executive privilege over the transcripts in the interest of transparency.
The meeting also saw both sides trading accusations over who can be trusted to accurately represent interviews.
Comer raised the specter that the transcript may not be accurate, calling it “insufficient to simply take the Justice Department at its word that the transcripts have not been altered.”
The Justice Department in a court filing in a separate legal battle to obtain the audio said the transcript was accurate, noting that “filler words” like “um” or “uh” were not included nor were repeated words “I, I.”
“The transcripts accurately capture the words spoken during the interview on the audio recording with no material differences,” the department said.
In the same case, DOJ argued they also feared release of the audio could lead to its manipulation.
House Judiciary ranking member Jerold Nadler (D-N.Y.) said disinformation expert Nina Jankowicz experienced such an issue last year after speaking with the committee.
“The only thing that has not been produced is the recording itself, something that in the wrong hands – specifically in Mr. Jordans hands – can be easily manipulated. This is not an idle concern. Last year, a witness testifying in a closed door deposition told us that she was the victim of a manipulated video amplified by Republicans on the Judiciary Committee and that it contributed to a flood of death threats against them,” Nadler said.
The contempt resolution essentially serves as a referral to the Justice Department, which would then be tasked with determining whether it believes a crime was committed and if charges should be brought.
It’s unlikely that Justice Department officials would come to a different conclusion than Garland when weighing whether he should face prosecution.
Mychael Schnell contributed.
